Aboriginal Cultural Heritage

Objectives

Our objectives are as follows:

to identify, record and communicate the story of Aboriginal connection with Fremantle Prison and the place where it is located
to consult and engage with Aboriginal stakeholders in a timely and culturally appropriate manner, and be consistent with legislative requirements
to manage Aboriginal heritage values embodied by the site consistent with assessed levels of significance.

Risks to Avoid

We have identified the following risks to be avoided:

inadvertent breach of legal obligations
inappropriate privileging of non-Aboriginal heritage over Aboriginal heritage
inadvertent or deliberate failure to engage with Aboriginal stakeholders on relevant matters
inadvertent damage to Aboriginal cultural heritage due to lack of knowledge, consultation or research
tokenism and stereotyping in the identification, assessment, management and interpretation of Aboriginal heritage.

Statutory Framework

The EPBC Act governs the management of places on the WHL. Their OUV must be conserved. Fremantle Prison’s OUV relates principally to convictism as part of a global historical movement, but the WHL citation for Fremantle Prison includes the observation that convict sites ‘illustrate an active phase in the occupation of colonial lands to the detriment of the Aboriginal peoples’. In other words, the Aboriginal experience of Fremantle Prison is a dimension of its significance. The EPBC Act establishes a NHL for places of outstanding value to the nation. Fremantle Prison is listed on the NHL but not for Indigenous heritage values.

The Heritage of Western Australia Act 1990 establishes a ‘Register of Heritage Places’ (Section 46) for places of state significance. Fremantle Prison is included on the Register but not for its significance to Aboriginal people.

Under Section 17 of the Aboriginal Heritage Act 1972 (WA) it is an offence to excavate, destroy, damage, conceal or alter an Aboriginal site. Consent to do so can only be obtained through Section 18 of the Act, through the Minister, following a statutory process that includes an assessment of the significance of the Aboriginal site.

Pursuant to Section 38 of the Aboriginal Heritage Act 1972 (WA) the Western Australian government maintains a Register of Places and Objects for Aboriginal Heritage. No part of Fremantle Prison is included on the Register.

Any Aboriginal Heritage Surveys within the South West Settlement Indigenous Land Use Agreement (ILUA) area requires the Department of Planning, Lands and Heritage to enter into a Noongar Standard Heritage Agreement (NSHA) unless there is an existing agreement. This includes the Fremantle Prison area.

Aboriginal Cultural Heritage: About

Non-Statutory Framework

The Australian government advises the managers of places that may embody Aboriginal heritage values to consult with Indigenous peoples in making relevant decisions (See online: Ask First – A Guide to Respecting Indigenous Heritage Places and Values).

The Australian government has prepared a guideline document entitled Engage Early – Guidance for Proponents on Best Practice Indigenous Engagement for Environmental Assessments under the EPBC Act 1999. It considers that best practice Indigenous consultation includes identifying and acknowledging appropriate Indigenous peoples, a commitment to early consultation, the building of trust through ongoing communication, setting appropriate time frames, and demonstrated cultural awareness.

Article 31 of the UN Declaration on the Rights of Indigenous Peoples states (among other things): Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage.

The UN Permanent Forum on Indigenous Peoples advocates for Indigenous peoples to be informed and involved in matters that may impact their cultural heritage so that they have the opportunity to give free prior and informed consent.

Article 13 of the Burra Charter states: ‘Co-existence of cultural values should always be recognised, respected and encouraged. This is especially important in cases where they conflict.’ Ways of achieving this are presented in the ICOMOS Practice Note entitled ‘The Burra Charter and Indigenous Cultural Heritage’.

Aboriginal Cultural Heritage: About

Constraints

Works that require ground disturbance will require prior assessment by an archaeologist of the potential for Aboriginal archaeology to exist at the impacted location. Where a location contains known or potential Aboriginal archaeological material that satisfies the definition of an ‘Aboriginal site’ under the Aboriginal Heritage Act 1972 (WA), ground disturbance works should only proceed after consent has been obtained from the Minister pursuant to Section 18 of the Act.

Where unanticipated Aboriginal archaeology is encountered during ground disturbance works, those works must cease and the advice of an archaeologist should be sought before works recommence. This may also necessitate the making of an application for consent under Section 18 of the Aboriginal Heritage Act 1972 (WA).

Where art, graffiti or other evidence of Aboriginal connection to Fremantle Prison is made a feature of interpretation, this should only occur after consultation with appropriate Aboriginal stakeholders. This is particularly relevant to matters relating to Aboriginal deaths in custody which demands a highly sensitive approach.

Opportunities

Although Fremantle Prison was the site of Aboriginal suffering and hurt for much of its life, it may also be an important and effective tool for healing and reconciliation.

The Aboriginal part in the Fremantle Prison story is presently being communicated through engaging art exhibitions, oral history programs and other interpretation measures. There is scope for these activities to be enhanced and expanded through a range of collaborative ventures, some of which might be undertaken on a mutually advantageous commercial basis (e.g. through tours and the gift shop).

A broad range of skills is required for the conservation of Fremantle Prison, including traditional trades. There are opportunities for Fremantle Prison to ‘upskill’ interested Aboriginal people in heritage practice through internships and training programs.

There are opportunities for Fremantle Prison to explore linkages with Rottnest Island, a place that also embodies Aboriginal heritage values.

Overarching Policy Framework

POLICY 5

Fremantle Prison will continue to develop processes that ensure effective and meaningful engagement with relevant Aboriginal stakeholders insofar as the site embodies Aboriginal heritage values.

POLICY 6

Fremantle Prison will seek to realise the potential of the site as an instrument for reconciliation.

POLICY 7

Fremantle Prison will be managed having regard to all the dimensions of its heritage significance, including any Aboriginal heritage values that it may embody. This will be done consistent with assessed levels of significance, prioritising the OUV for which the site is inscribed on the WHL.

Proposed Action

ACTION 4

Fremantle Prison will prepare a Reconciliation Action Plan (RAP) in consultation with relevant Aboriginal persons. Consultation will include Noongar people (the traditional owners of the country in which Fremantle Prison is situated) in addition to other Aboriginal groups with a demonstrated connection with Fremantle Prison. The RAP will conform with the ‘Reflect – Innovate – Stretch – Elevate’ pathway encouraged by Reconciliation Australia.

ACTION 5
Engage a heritage practitioner to (a) consult with relevant Aboriginal parties and (b) assess Fremantle Prison for its Aboriginal heritage values. Depending on the results of this assessment it may be necessary to seek a modification of the site’s reasons for listing on the NHL and the WA Register of Heritage Places (the SHR) to include Aboriginal heritage. It may also be necessary to seek to include the site on the WA Register of Places and Objects for Aboriginal heritage.

ACTION 6
Investigate the requirement for a Noongar Standard Heritage Agreement (NSHA) prior to any re-assessment of the Aboriginal heritage values.